The Voice for the St. Louis Construction Industry

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The challenge in developing a customer base is determining which customers represent the best possible opportunity. Which pay the best? Which are easiest to work with? Which are the least demanding? Companies market themselves to death trying to attract these types of customers.

That’s the core problem – thinking all you need to do is attract the best customers. It’s kind of like the woman who only seems to attract loser men or the man who only seems to attract needy women. That’s a lot of people.

Available, perfect customers are virtual unicorns. The key is you don’t attract them. You build them.

This is the secret in building a customer base that is loaded with grade A clients. As with any desire to get ROI in a sales effort, you must ask the question: What am I willing to invest? Too many companies make a passive effort trying to gain business and sales. They sporadically meet with clients, often only in relation to an upcoming project. This is not enough to build a quality customer base. Your investment of time and resources is imperative to achieving this end. Cutting corners or limiting customer contact can reduce the depth of your relationship. Merely evaluating good customers from poor customers is not enough. If a customer doesn’t feel you’re invested in the relationship, he or she can just as easily use your competitor.

The greater the depth of relationship, the stronger the bond of trust with your clients. The greater the trust, the more willing the customer is to accept your interpretation of project scope and pricing. Clients believe you will be fair and look out for their best interests above yours if they trust you. Establishing this level of trust directly impacts your bottom line.

How do you achieve this level of relationship? It’s not as hard as you think.

First, set aside time for the lunch, coffee and happy hour encounters that sometimes seem fruitless. During some of these, don’t even talk about a project or discuss business at all. Just laugh and discuss your favorite team’s season. Ask about their children’s achievements. (Black and white thinkers see this as a colossal waste of time; hopefully those people work for your competitor.) Invest in developing a friendship beyond a project-based relationship. If you do, when a project does arise, you’re the go-to in your area of expertise. If you’re not taking the time to invest in these encounters, you’ll never be considered more than a viable supplier. That’s what most contractors are to their customers.

Second, budget resources to entertain and recognize your customer base. People still appreciate a good lunch meeting, round of golf or a game. (I can hear the CFOs out there sighing in frustration. “Money wasted so sales personnel and customers can go play. What an extravagance.”) I’ve faced this my whole sales career. I even do with my staff now. If I hear one more, “I hope you had fun” in that condescending tone I’m sure many of you have heard, I’m going to snap. Yes, we did have fun. Lord knows, you wouldn’t want to have fun with a customer. Why on earth would you want to share positive life experiences with someone who can give you business? The last thing you want is to spend $100 on a client that can award you thousands or millions of dollars in contracts. This isn’t a license to abuse the privilege, but let’s get past the petty jealousy. We’re going for significantly higher and deeper levels of relationship here. That takes a greater investment. You get out what you put in. It’s that simple.

Third, you need the support of staff and company management. They need to realize you’re aiming for a uniquely deep customer relationship. They need to want that to happen and be willing to do all that is feasible to make that happen. This means assisting in processing paperwork, capturing information and performing with a level of excellence. This can free up sales agents to truly dive deeply into their customer relationships. If all hands are on deck in supporting the sales effort, results traditionally follow. An internal team that is mature enough to understand the need for a sales team to have the space and support to graft customers into the fabric of the company will reap tremendous benefits.

The challenge for many companies is adopting a sales culture that gives sales relationship development its proper priority. Allowing sales personnel to actively pursue relationship opportunities displays a degree of sales maturity not commonly seen. The construction industry isn’t known for this type of sales acumen. The pressure of bidding drives the transaction toward price. This negates the role of relationship and creates a level playing field, regardless of a contractor’s competence or integrity. Contractors would like customers to decide on these factors over price but don’t give enough attention to developing relationships to overcome the force of bidding. Securing premium customers is never achieved through pricing formats.

I’ll often hear one contractor say how much it loves working for a particular customer while another says it’ll never bid that same customer again. How is that possible? Well, the most dividing factor between those two perspectives is simply the level of relationship development. If you have a deep connection, communication lines are clearer and issues are resolved quickly. The customer doesn’t want the contractor to absorb a loss and will work to find an amicable solution to a problem. Those with less or no relationship will be treated more abruptly, and the customer will tend to protect its own interests. Often the customer is blamed, when in reality the contractor didn’t invest in developing that relationship. Many contractor employees whose responsibilities include sales also have other important roles. Whether it’s project management, estimating or even administrative needs, these all eat away at sales focus. It’s difficult to be impactful in sales when your attention is spread over so many areas. Once a project starts, the opportunity to work a strong sales effort diminishes.

Cultivating premium customers is the responsibility of those doing the selling. Putting the onus on the customer to be a premium client is a reverse rationale. A company that makes a conscious decision to invest in deep relationship development will see the loyalty and commitment it longs for from its customers.

Those who choose not to make that investment will battle the low-bid game going forward.

Tom Woodcock, president of seal the deal, is a speaker and trainer for the construction industry nationwide. He can be reached via his website, www.tomwoodcocksealthedeal.com, or at (314) 775-9217.

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Missouri’s Western District Court of Appeals recently dismissed a pedestrian’s lawsuit against the City of Lee’s Summit, MO for serious injuries after his fall in 2017 from an unguarded retaining wall. The court held the city was immune from the lawsuit, even if its actions or inactions were negligent.

The city did not own or operate the property where the retaining wall was located. But it did issue the building permit for the retaining wall.

The plaintiff, Kurt Pycior, claimed that the city negligently inspected the wall or did not inspect it at all.

He also sued various corporations that designed and/or built in 2009 and 2010 the retaining wall and parking lot below the wall. The appellate court ruled Pycior’s lawsuit will continue in Circuit Court against them and potentially will be scheduled for an upcoming trial.

The wall was located between two differently elevated portions of a parking lot. The parking lot was at Summit Fair Shopping District within the city limits.

The City of Lee’s Summit had adopted portions of the International Building Code, more commonly known as IBC, as its governing regulation for design and construction of retaining walls. The IBC provides that “Guards are required at retaining walls over 30 inches above grade when walking surfaces are within 10 feet of the high side of the retaining wall.”

Many municipalities have adopted the IBC in their public contracts. It is widely accepted as a standard – if not the standard – in the construction industry.

The city required the corporate defendants, who remain in the lawsuit after this decision, to obtain building permits. The city’s agent, according to plaintiff’s allegations, either did not inspect at all or failed to inspect the project site and the design plans.

The city did collect the appropriate permit fees and issued the building permits, thereby allowing the corporate defendants to construct the retaining wall. Pycior claimed that the as-built retaining wall did not conform with the building code because it did not include a guard, fence or barrier.

Due to the City of Lee’s Summit’s alleged negligent inspection or lack thereof, the plaintiff sought recovery for his injuries including the award of punitive damages.

The city moved to dismiss, claiming sovereign immunity. The trial court denied this request. The city then sought a writ of prohibition in the Western District Court of Appeals.

A writ of this sort, if granted, prevents the trial court from what it decided and requires it to do something else, generally the opposite of whatever it did.

A lawsuit against a city requires the plaintiff to show enough to prove there is a viable lawsuit that survives a city’s typical immunity. Missouri’s courts have routinely held that sovereign immunity is not for the municipality to plead and prove.

Rather, it is for the plaintiff to allege and to show with specificity that there are facts that merit an exception to the doctrine of sovereign immunity. Sovereign immunity, simply stated, prevents a lawsuit against the city because it is a city.

Loosely speaking, the concept dates way back to the idea that the king and queen could do no wrong, thus they were above the law and thus above any lawsuit. A more modern American version, of course, is the expression, “You can’t sue city hall.”

But sovereign immunity is not absolute. The critical distinction is whether the city engaged in governmental functions or proprietary functions.

Governmental functions are performed for the common good of all. Proprietary functions are performed for the special benefit or profit of the municipality. They involve a municipality providing services or conveniences to its citizens.

The distinction can be elusive. This helps to explain why various plaintiffs over the years believe they have had a viable lawsuit against a city.

There have been many lawsuits before, some successful, and there surely will be many to come in the years ahead.

In this case, the plaintiff maintained that the City of Lee’s Summit engaged in a proprietary function when it negligently inspected or failed to inspect the retaining wall and then issued its building permit.

The city’s code and regulations required that it inspect the retaining wall to ensure safety and compliance with the city’s code and regulations, including the IBC. This duty was mandatory, according to the plaintiff’s allegations.

The opinion does not indicate anywhere that the retaining wall complied with the IBC. Yet, this was not the determining factor regarding the city’s liability.

The appellate court noted that governmental functions do not become proprietary functions merely because they generate a profit or in this case a fee for a construction permit. Instead, the court focused on the general nature of the activity being performed.

The court found this activity to be governmental in nature.

The appellate court stated that the city may have been negligent in its actions or its failure to act. This negligence may even have caused a breach of the city’s duty of care to enforce its building code.

From a legal point of view, however, this did not matter. The City of Lee’s Summit was carrying out its governmental functions by enforcing the building code. Therefore, the city is immune from this lawsuit. In fact, the court found that the city had an “absolute defense of sovereign immunity.”

The court of appeals ruled that the trial court erred in not granting the city’s initial motion to dismiss the lawsuit. The appellate court’s writ of prohibition is now permanent. The city is removed from the lawsuit.

James R. Keller is counsel with Sandberg Phoenix & von Gontard P.C. where he concentrates his practice on construction law, complex business disputes, real estate and ADR. He also is an arbitrator and a mediator. Keller can be reached at (314) 446-4285 or jkeller@sandbergphoenix.com.

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Gotta love the tech industry. We make up names for everything. The newest name to come to the forefront is spear phishing, since misspelling “fishing” makes it sound more futuristic, I guess.

Seriously, scams and outright theft in the digital world have become a sophisticated criminal enterprise. Whereas just a couple years ago, scammers would spam millions of email addresses hoping to reel in a handful of people, now thieves are researching companies, their staff, their suppliers and their customers in extremely targeted attempts to fool people into either giving up their user names and passwords or outright attempts to get money transferred.

recreated complete with company logos and fonts – claim there was a problem with their systems and all you need to do is reenter your credentials via a link they provide. That link takes you to a fake website, again, recreated to match the legitimate one down to the smallest detail. It’s a fake website just waiting like a spider for some person to let his or her guard down, just once, and enter personal info. Once it’s done, scammers quickly use those credentials to access the legitimate site and either spend the limit within seconds, redirecting shipments to a place of their choosing, or sit with the info for months – waiting for the right moment to take control of business dealings that can easily add up into six or even seven figures in a matter of hours. We’ve received warnings of targeted attacks from both our vendors and major clients. They’ve seen evidence of pinpointed attacks of even the smallest businesses.

Another common scam now is the thorough research of spear phishing, in which an email will show up in the inbox of an employee with authorization to transfer funds, supposedly from the boss’s boss, asking for money to be transferred to an account. Usually there is some supposed catastrophe or a “once in a lifetime” deal that will slip away if the money is not transferred immediately.

Luckily, any business with even basic security procedures in place should catch these attempts. After all, no money should ever be transferred to a new account without multiple cross-checks. However, once again, all these crooks have to do is catch the newbie – or someone having an off-day – and the money is gone. I know of two clients who have been targeted with these attempts. In both cases, a bank employee did not follow procedure. In one case the account number was mistyped, so what would have been a disaster was averted. In the other case, the bank involved had to make the client whole since the employee did not follow any of the verification procedures that were in place. Still, in both cases, there was a considerable amount of wasted time and a lot of stress that shouldn’t have befallen these businesses in the first place.

Besides educating staff about these threats, businesses that regularly transfer money should consider using a separate domain (and separate email addresses) that are not connected to the company’s everyday domain name when sending financial data and requests. Also, all emails that contain account numbers, usernames or other such information should be encrypted. Office 365 has this capability, as do several third-party services such as Bracket from Mailprotector. Also, no funds transfer should be initiated without a second type of verification. For example, if the initial request comes in via email, the verification should be by telephone.

The same applies to attempts to snatch employee data. Like the scam I outlined above, this time the scammers pose as someone needing to verify employment info or say they’re from the employee’s bank and are trying to troubleshoot why the employee’s direct deposit didn’t go through. Once these scammers get the SSN and/or bank account info, employees will be dealing with cleaning up identity theft. And if it gets traced back to the employer, look for the lawyers to circle. I had a relative who was scammed by the opposite version of this. She was contacted supposedly by her employer’s HR office to verify bank info for a direct deposit. The result? Scammers redirected her paycheck to their account. The employer’s failure to verify that it was indeed my relative who initiated the change – and failure on my relative’s part (as the employee) to hang up and independently call the HR department to verify the action – led to the success of this scam attempt.

As owners and managers of small businesses, we are very juicy targets to these scammers, who are usually overseas and have significant resources. Using information specific to a business owner, scammers try to find a soft target such as an employee who is distracted, new, not well-trained or just doesn’t follow procedures. Simple searches of company websites, press releases, LinkedIn and the like provides a treasure trove of information that these scammers can use. Fake emails, texts or voicemails ask the employee to transfer money to a supposed new bank account, pay a new vendor in advance to get a project moving or impersonate the identity of one of the business’s long-time vendors, which just so happened to have changed its remittance information today.

Joe Balsarotti is President of Software To Go and is a 40-year veteran of the computer industry, reaching back to the days of the Apple II. Keep up with tech by following him at Facebook.com/SoftwareToGo or on Twitter @softtogo

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Washington University in St. Louis has played a unique role my life. Though I was never registered there as a student, I spent a large part of my youth on its storied campus.

Our cover story in this issue features a transformative $280 million project called “Campus Next” which is focused on the east end of the Danforth Campus at Washington University. Growing up in University City, my family home was about five blocks from that area, but back then it was known as the Hilltop Campus. As a kid, I thought the Hilltop Campus moniker made a lot of sense given the elevation of the property and the steep hill which extended from the north side of the athletic complex down towards the old Channel 9 building and Forest Park Parkway. My siblings and I called that stretch of landscape “suicide hill” and it was our favorite destination for sledding. When we needed to thaw out between sledding runs, we found the perfect spot in the lower level laundry rooms of the married resident housing. Every Spring, our entire neighborhood crew looked forward to the annual Thurteen Carnival fundraisers. The rest of the year (assuming the statute of limitations for trespassing has run its course by now) I confess that we pretty much ran wild, exploring campus buildings, galleries, tunnels and engineering facilities. Those were much simpler times.

In my twenties, I found a more legitimate excuse to hang out on campus when I took a job as a manager of the Whittemore House, a wonderful old mansion built in 1912 on Forsyth Boulevard which serves as the faculty club for professors and staff of the University and the medical school. The five years I spent at Whittemore House ultimately laid the groundwork for what turned out to be a rewarding 30-year career in the hospitality industry. During my time there, I was privileged to meet many of the great people who helped make WashU what it is today and whose names now grace buildings across the campus.

In a roundabout way, I could even credit WashU for the existence of my two wonderful children, since the campus is where I met their mother Debbie. In the late 70s, she took a job waitressing at the faculty club to help finance her graduate studies in the engineering department. As she neared the completion of her degree, Debbie began her job search. Always one to aim high, she reached out to William Tao, one of those great people who helped to write the University’s story. Tao was a true giant in the local engineering community, a member of the Washington University governing board and, conveniently enough, a Whittemore House member.

Debbie likes to say that his written response to her resume, in which he thoughtfully provided suggestions for some other companies that she might consider, was the kindest rejection letter

she ever received. Soon after the letter arrived, Debbie was working a club party when she spotted Tao and his wife Anne and approached him to thank him for the letter. After a five-minute conversation, they agreed to meet again later that week to continue their discussion. Charmed by her intelligence and tenacity, Tao hired Debbie as his assistant. She worked for William Tao & Associates for more than eight years and in the process built a lifelong friendship that continues to this day.

Washington University has always been a dynamic part of the St. Louis landscape, and its reputation as one of the premier educational facilities in the world is a diamond in our city’s crown. Over the decades, the University’s visionary leadership has provided the St. Louis building community with a continuous supply of challenging and innovative projects and we look forward to continuing our role as documentarians of the University’s the next chapter. As for me, my sledding days may be over, but the WashU campus will always hold a special place in my heart.

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St. Louis Construction News & Review was launched in 1969 as The Voice for the St. Louis Construction Industry, and the founding Publisher was adamant about his choice of the word “for” rather than “of” in that tagline. Nearly 50 years later, we are mindful of that subtle but very important difference. Our stated purpose is not to speak on your behalf, but rather to provide a voice for the local construction industry. We see our role as story teller – the stories themselves are yours and our goal is to document and share them.

Every year around this time, the St. Louis CNR team comes together to brainstorm and identify topics for the two or three “Industry Features” that will appear in each of the six issues scheduled for the upcoming year. As you can imagine, it’s a tricky assignment to look ahead, sometimes 14 months into the future, and land on a dozen or more stories that will be timely, relevant and interesting to our readers.

The “Building Features” you see in each issue are obviously more time-sensitive, subject to unexpected setbacks, projected completion dates and dependent on our ability to round up the industry contacts we need to help us tell the story accurately. Whether the topic is chosen 12 months or 12 days before we start writing, the truth is, setting up those interviews can be a struggle. The more players connected to a project, the more difficult it is to identify the right spokesperson for each entity and locate a window in their schedules for the interview.

When we can get it, access to a subcontractors list is optimal. Those lists give our writers perspective on the complexity of the project which improves the accuracy of their reporting and often adds dimension to the stories that might have been missed. Subs lists also make it more likely that we will get the attributions right. For the record, publishers hate running corrections. Not because it’s inconvenient, but because it means we didn’t get it right the first time. We are always grateful to the General Contractors who understand the value of a good story well told and support our commitment to getting it right by providing subcontractors lists for their projects.

Occasionally, our efforts to report on what’s happening in a particular segment of the industry are similarly thwarted by communication issues. In fact, we were forced to cancel an “Industry Feature” planned for this issue when significant efforts to arrange interviews with leading providers of the products and services we intended to cover failed. My optimistic evaluation is that everyone doing this particular line of work is swamped right now and too busy to talk to a reporter. Our team was disappointed about losing what we thought was an important story, but we also regret the lost opportunity to support those companies by featuring their work.

On the heels of this loss, our always-sunny editor, Kerry Smith, made what I think is an important observation. Kerry noted that most of the companies she called were not prepared to tell (or to help us tell) their stories. Without a designated media spokesperson or an understanding of the value of editorial coverage in their home market, opportunities were missed. If my hunch is right, and all the companies we called were buried in work, that’s fantastic, but the missed coverage still matters because it might have helped queue up projects for when the pipeline eventually slows down. The next time the phone rings, whether it’s St. Louis CNR or another publication calling, remember that your story is worth telling, and you can help make sure it is a good story well told.

The library has always been one of my favorite spots. As a lover of history and an avid reader, I believe I’ve probably learned more in the last 15 years than I managed to absorb in the previous 50 combined. Inversely, the older I get the more challenging it becomes to embrace change. Depending on how you interpret Einstein’s statement above, I could be headed for a zero-sum game, intellectually speaking.

History tells us that while mankind’s relationship with change is complicated, great things can happen when a society is willing to embrace new ways of doing things. In this issue of CNR, several feature stories highlight the connection between the construction industry and our city’s need to adapt and change. We hope you enjoy the issue and we invite you to reach out and share your own stories with me or with our editor, Kerry Smith.

In this issue:

Prefab to Fast-Track Projects – The practice of pre-building large components before delivery to the jobsite is on the rise. Advantages include convenience cost-savings and one partial solution to the challenge of recruiting and retaining a qualified labor force.

Construction Management Programs in Higher Education – Colleges and universities are taking the bull by the horns to address the construction labor shortage, offering degreed and post graduate study programs in construction management, engineering and other programs. It is a forward-thinking trend that promises to be a great boon to our industry in coming years.

Engineering to Withstand Modern Threats – Engineers are being put to the test as they face down the challenge of designing public buildings and schools that can withstand terrorist threats and the increasingly common occurrence of natural disasters.

Back to School – In the midst of an economic downturn that decimated the construction industry, we were encouraged to see funding continue for construction and expansion of colleges and universities. A successful $85 million bond referendum, passed in 2016, is providing funding for an extensive rework of Ladue High School.

Transforming Olin Library at Washington University – Sometimes, building projects are like Forrest Gump’s box of chocolates: You never know what you’re going to get. Read about the challenges Alberici Constructors faced in effecting “inverted vertical expansion” as this WU landmark was transformed; literally, from the ground up.

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Cold calling is dead. The days of the “hard sell” are behind us. Thank goodness, right? However, this places the onus on the marketing departments to support sales even more and create a united front of messaging and brand positioning. Both departments need to work in tandem with each other with the new trend of “soft selling,” a trend that is here to stay.

If your company depends heavily on referral work and repeat business, you’ve been in business for a while and you have salespeople and project managers who possess years of relationships and experience in their field, chances are you are already employing the soft sales approach. How do we increase its effectiveness? We engage Marketing. Yes, you – Sales – will not get rid of us. You need us. The hard sell is going away, but we – Marketing – are here to stay.

Companies lose important sales opportunities when they don’t engage Marketing. They don’t understand this new relationship between marketing and sales. In the old way of hard sales, Sales could act more independently through cold calls, forceful sales letters and unsolicited pitches. The customer knows he or she is being sold to. There is no gray area. Marketing was able to act more independently as well, while employing more traditional, straightforward marketing techniques that didn’t need the salesperson’s collaboration.

The buyer persona is changing. Buyers are more aware, more informed, doing their own research online, choosing when they buy and preferring to order online with a few clicks on their keyboard or mobile device rather than picking up the phone. Because this customer/sales dynamic is changing with a new, softer approach, Sales and Marketing need to work together to strategically find ways of informing customers rather than pressuring them.

This type of selling focuses on the relationship-building aspect of sales and finds less aggressive ways to show customers the solutions they need. Enter Marketing.

Marketing should support the sales effort with a brand image and message that delights and informs the customer. Useful and creative messaging that captures the customer’s interest and information is the key to growing your sales pipeline. While Sales engages customers, builds relationships and becomes trusted advisors, if Sales doesn’t have the brand, messaging and marketing expertise to back up this soft sell approach, Sales misses out on major low-hanging fruit opportunities.

It’s actually more than a soft sell approach. It is a creative and strategic partnership between Sales and Marketing that connects the customer base with the identity of the company.

Many undermine or dismiss marketing’s importance because it is more difficult to measure. I was recently asked, “Are print ads in industry magazines really worth it?” Why was I was asked this? Because it is difficult to measure results and the bottom-line value.

My answer is simple: If your customers are reading that magazine, if you want to position your company as a premier, experienced expert in your industry… then yes, they are worth it. And guess what? You can measure an ad’s effectiveness. While the main point of print ads, billboards, commercials and more are to position and elevate your brand, they can be measured through analytics. A customized website link can be printed on the ad that directs traffic from that ad to a monitored landing page.

Image is power. You are presenting an image of your company that helps support your sales effort.

Both traditional and non-traditional marketing techniques are needed to accomplish a cohesive strategy. The older, more traditional way of marketing will not properly reach those newer buying types and is being reinvented to remain relevant. Landing pages, digital marketing, analytics and SEO/SEM are all part of this reinvention. These non-traditional methods are becoming an integral piece of the marketing playbook. The key is for Sales and Marketing to develop a strategy that uses the best of both traditional and non-traditional marketing.

So how do we accomplish this? I sit down with marketing teams to discuss and create strategic approaches. How-to videos, white papers, social media engagement, search engine optimization, electronic newsletters, lunch n’ learns and digital engagement are just a few of the marketing tools my clients use to become the go-to source for their customers.

My clients also still use traditional marketing techniques such as print ads, billboards and press releases – but these traditional techniques have been

reinvented. Traditional marketing is not dead. It is reborn. Billboards call attention to creative website URLs to increase traffic and SEO on a mobile website. Press releases link to blogs and white papers on the company’s website. Print ads have call-to-action links to increase online engagement.

In softer, strategic sales, we shape the narrative. Because the soft sales approach relies on expertise and relationships, our marketing position plays an important role. More importance is placed on the marketing team to help facilitate the soft sales process. It’s no longer a transaction between a salesperson and a customer. The whole company’s image is becoming part of the transaction. Website presence and traffic, search optimization, digital tools and electronic marketing are all essential in a comprehensive communication strategy. If the brand and message of Marketing isn’t in line with the values Sales is presenting, then the relationship with the customer – and the customer’s trust – is at risk.

How do you increase your marketing efforts and image? Each company and industry need a customized approach. The good news: There are so many tools in our arsenal now to make an impact. The bad news: Learning how to master each takes more skill and a team of people to facilitate.

I find that companies are still struggling to get sales and marketing departments on the same page. They each go their separate ways, as if their paths do not cross. Whether you know it or not, your paths cross. Your customers see what the marketing department sends out and then they see the salesperson. The two need to be unified in their approach. Get a good team of people, work on a strategy, solidify your identity and work together. Marketing and Sales need each other. It’s “’til death do us part.”

Stephanie Woodcock is president of Seal the Deal Too, a St. Louis-based marketing, creative & communications firm. She can be reached at stephanie@sealthedealtoo.com.

There’s evidence of it all around us. Teens can’t make change at the drive-thru window. Drivers blindly follow GPS right into a lake (if they take the wheel at all). Cursive writing has become a lost art. Surveys show that people losing their smartphone rank that experience just one point below a terrorist attack in regard to the level of stress it would cause.

As technology does more and more for us, the adage “use it or lose it” has begun to prove itself a law of the universe. Just as the prevalence of auto-pilot use caused the FAA to increase simulator time for pilots due to falling reaction times, we see what used to be common knowledge has become foreign to the younger generations – or lost to those who don’t make use of the skills they once had.

Maybe map reading, making change or flying planes aren’t required for your business, but the same causes and effects are probably starting to creep into your business processes. After all, we purchase and use technology in our companies to increase productivity and lower costs. However, blind trust in the technology – with staff now unable to verify or recreate the results without the ‘black box’ – should be of concern to any business owner or manager.

All technology eventually fails. We back up, surge-protect, virus-protect, firewall and scan. We sync data and for mission-critical systems, we include redundant elements and have spares at the ready.

Is your company ready for when the systems “which can’t go down” do go down? Does your business have a documented plan in place to start from scratch in case of a major disaster? Where are the license keys, contracts and warranty information for your equipment, software and services? Is your answer, “On the computer?” If so, you now see the problem.

The old POTS (plain old telephone service) was unbelievably resilient. New VoIP (voice over internet protocol) phones are anything but. You can’t just grab a $10 extension phone at Radio Shack like you used to, plug it into the wiring closet and at least get a line out. Now the internet line needs to be up, the switches, routers, firewalls and VoIP servers need to be in place, powered and configured to achieve that same basic dial tone. That’s the price for the cost savings and flexibility of VoIP, and there’s no choice as phone companies slowly turn off those POTS services.

Fire, flood, earthquake, alien invasion or zombie apocalypse – all could render all your technology infrastructure useless. You say, “It’s all safely in the cloud” and that’s fine, assuming you can get to that cloud. What many forget is that if you can’t get to your account information, license keys, contracts and the like, you can’t gain access. With encryption being the norm for backups nowadays (for good reason, as I’ve discussed in previous columns) that also means if you lose the key, the data is rendered useless and unrecoverable.

What’s a business owner or manager to do? Follow the words of President Ronald Reagan, “Trust, but verify.”

~Take the steps to back up locally and offsite in the cloud.

~ Put redundant elements in place where critical.

~ Regularly maintain and update not only the hardware, but the software also.

~ Make sure there are hard copies of your contracts, licenses, keys and other critical information locked up in a fire safe both on-site and off-site.

~ Have a contact list for emergencies and a calling order to wrangle the staff together.

~ Drill your staff to make sure they can keep basic business functions running without the cool technology.

~ Check your insurance coverage to verify you have cyber coverage as well as contents coverage.

~ Speak to your IT provider about what services it can offer in event of an emergency.

The United States Small Business Administration found that more than 90 percent of companies fail within two years of being struck by a disaster. Unfortunately, it’s these basic non-technology pieces of the technology puzzle which elude so many business owners and become the death knell after a disaster strikes.

Use these tips and apply common sense business practices to make sure your business doesn’t become a statistic.

Joe Balsarotti is President of Software To Go and is a 40-year veteran of the computer industry, reaching back to the days of the Apple II. Keep up with tech by following him at Facebook.com/SoftwareToGo or on Twitter @softtogo.

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Missouri’s Eastern District Court of Appeals decided for and against a contractor and its subcontractor. The opinion offers significant legal rulings on everyday construction issues including change orders for extra work, lien waivers and attorney fees.

The court placed the victory with the subcontractor, however, finding it to be the prevailing party. This finding allowed the subcontractor to recover attorney fees under its subcontract.

The fees exceeded by 11 times the amount awarded on the subcontractor’s claim. The Eastern District directed the trial court to reconsider these fees considering the overall dollar value of the recovery.

The project was the renovation of two apartment buildings at 2804-2820 South Compton Avenue in St. Louis, MO. Magnolia Halliday, LLC owned the property.

Magnolia hired Blackline as the general contractor. Blackline entered into a subcontract with Parkway to do the plumbing work for $96,000.

Blackline agreed to provide shower valves, faucets, tubs and sinks. Parkway’s scope of work included reworking existing drains lines, waste drains and vents (DWV). This improvement would allow for new fixtures.

The contract described Parkway’s objective was to provide a complete working plumbing system. But Parkway was unwilling to accept the risk of replacing all the DWV piping.

Thus, the parties stipulated that Parkway would be responsible for repairing or replacing up to a maximum of 50 percent of the DWV piping. This 50 percent threshold was not clearly defined.

The contract did expressly define extra work, however, as requiring prior written authorization from Blackline. Extra work is work not in the original contract scope.

The contract also contained an attorneys’ fee provision stating that the prevailing party was entitled to its reasonable attorneys’ fees, costs and expenses. The contract did not define “prevailing party.”

During the project Parkway emailed Blackline that it had reached the point of having repaired 50 percent of the stacks without any additional costs. It asked Blackline for direction going forward. Parkway stated it was a “tough job with a ton of additional costs we could not have foreseen.”

Blackline responded three days later. It disagreed that the 50 percent threshold had been reached. Blackline contended that the entire job should be completed without exceeding the 50 percent allowance.

Parkway created two change order forms. One form related to the extra DWV work. The other form related to extra shower valve work.

Parkway submitted the shower valve change order form to Blackline before starting the work. Blackline approved in writing the extra work for $1,051.

Parkway submitted the DWV change order form only after completing the work. Parkway did not detail the precise hours spent on each task. It also did not receive in advance oral authorization to do the work.

When Blackline refused to grant the DWV change order request for extra work, Parkway stopped work.

Blackline then had to hire another plumbing contractor to complete the work.

As a partial attempt to resolve the DWV piping issue, Parkway executed a lien waiver in return for Blackline’s payment of $25,200. The waiver waived any claim for work through the date of the lien waiver.

Blackline also tendered to Parkway a check for $8,712.97. Blackline calculated this was the remaining amount due to Parkway after subtracting Blackline’s costs for hiring a second subcontractor to complete the job.

Parkway did not accept the check as payment, fearing this would preclude its claim for extra work.

At trial, Blackline admitted it owed Parkway $1,051 for the extra shower valve work and $8,712.97 under the contract as the remaining balance due. Parkway sought $79,449 relating to its extra work claim on the theory that Blackline benefitted from the work and if it did not pay it would be “unjustly enriched.”

Missouri case law supports recovery for work performed that was requested, but no formal contract was in place to cover the work. The claim is for quantum meruit or unjust enrichment.

The trial court found Blackline’s tender of $8,712.97 as final payment of the balance due to be a conditional settlement offer that Parkway did not accept. The court also noted Blackline’s behavior as “employing sharp practices to pressure Parkway to complete the project” and at the same time being “purposefully unresponsive to Parkway’s attempts at communication.”

Blackline prevailed on the DWV extra work claims. Blackline did not request the work as extra work.

The trial court also found that Parkway released its DWV claims by signing the lien waiver.

Parkway did recover on its contract balance and shower valve extra work claims. The work apparently was not subject to the lien waiver.

Finding Parkway to be the prevailing party, the trial court awarded attorney fees of $103,234.31.

Both parties appealed parts of the trial court’s rulings.

The appellant court decided that the lien waiver was enforceable and precluded Parkway from seeking any money for work it performed before the date on the lien waiver. The appellant court also decided that Parkway should have ceased work until it obtained written authorization pursuant to a change order to exceed the 50 percent threshold.

Despite these rulings, the appellant court found Parkway to be the prevailing party. The court noted there are many varied definitions and interpretations under Missouri case law as to who is the prevailing party.

In this case the court noted that Parkway’s evidence generally related to all its claims. Thus, success on one was enough to be the prevailing party.

The Eastern District sent the matter back to the trial court to reexamine appropriate attorney fees and to make certain they were not excessively awarded given the success by the parties on various claims.

James R. Keller is counsel with Sandberg Phoenix & von Gontard, P.C., where he concentrates his practice on construction law, complex disputes, real estate and alternative dispute resolution. He also is an arbitrator and a mediator. Keller can be reached at (314) 446-4285, jkeller@sandbergphoenix.com.

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It seems that the upcoming discontinuation of Windows 7, Microsoft Server 2008 and Adobe’s Flash were somehow a surprise to a number of businesses. Microsoft drops its monthly security updates and patches as of January 2020, as in the beginning of next year. We’ve consulted with our clients for a while to develop budgets and replacement plans for their networks, but far too many IT firms don’t like to give “bad news” – and as such, they leave such discussions until the last minute.

If your business is all Windows 10 or Server 2016, congratulations. Pat yourself on the back; you’re more prepared than most, it seems. If all this is all news to you, you need to get ready quick. The computer industry has been plagued with shortages of Intel processors for months now and there is no relief in sight. That means multiple months-long wait times for server and higher-end PC orders. Also, there are a number of application programs that need to be upgraded to run under Windows 10, so this tech refresh will probably take longer, from a calendar perspective, than previous ones. Networks with older NAS (network attached storage) units and old servers have problems connecting to new Windows 10 equipment, as W10 slammed the door on many of the security holes that the operating systems of these devices have.

Microsoft did its biggest push ever to position Windows 10 as its premier operating system. For more than a year, Microsoft gave free updates for users of both Windows 7 and Windows 8. Personally, I suspect sweeping the anything-but-popular Windows 8 under the rug was a large part of the strategy. However, narrowing the development focus to just one version certainly can’t hurt Microsoft, who has had its hands full trying to patch and secure multiple operating systems at the same time.

In January 2020, when Microsoft stops updating Windows 7, all those old machines become a security risk for your business and the data of both your company and its customers. As we’ve discussed before, running a business with known flaws in its PCs and networks opens it up for liability and loss of customers. Assuming one wants to stay in business, updating older technology is a business imperative in today’s environment. A new wrinkle is that Microsoft has said that updates will be available for those Windows 7 and Server 2008 customers who sign support contracts, but pricing will be such that updating the machines will be a far, far less expensive strategy.

Microsoft’s position is that Windows 10 is the “last version of Windows” and will morph over the years and undergo substantial updates on the fly, adopting the philosophy of Apple with its operating systems. Whether that idea will survive amidst changes in technology and widely varying needs of users is a gigantic question. Just ask the Apple owners who wake up to notice things that used to work no longer do because their systems can’t handle the new updates. Also, look forward to “as a service” offerings from Microsoft where monthly or annual payments will replace Windows bundled with systems. Microsoft has already been successful transitioning millions of Microsoft Office buyers onto monthly or annual payments for Office 365.

On top of these Microsoft changes, Flash – the language that powered websites for two decades – is finally going away. Flash, which was developed by Macromedia (and acquired by Adobe in 2005), brought easy animation to the web. However, Flash has been plagued with bugs and security flaws. Apple dropped support in its browsers and Apple co-founder Steve Jobs publicly skewered the software in an open letter back in 2010. Those using Firefox for browsing saw Flash support end, and Microsoft is dropping it from IE and Edge as well. At one point, more than 80 percent of users accessed some Flash-enabled website each and every day, but at last count that had dropped into the teens as HTML5 became the web language of choice. As with the Windows 7 transition, look for disruptions as old websites and applications that have not been rewritten become inaccessible.

Be sure to not only plan for the physical replacement of machines, servers and upgraded software, but also for training as Windows 10 and Windows servers have some substantial differences from their predecessors – and rewritten websites might have different functionality from their Flash version days.

Hopefully this isn’t new news. Hopefully your company and its tech staff (or outside provider) are already discussing this on an ongoing basis. However, if your current IT provider isn’t consulting with you at least annually to talk through refreshes to your technology, you may want to get serious about upgrading soon.

Technology is always in motion. To ignore it is to put your company at a disadvantage.

Joe Balsarotti is President of Software To Go and is a 40-year veteran of the computer industry, reaching back to the days of the Apple II. Keep up with tech by following him at Facebook.com/SoftwareToGo or on Twitter @softtogo.